Policing the Courts

Ignoring the headlines for a moment, the case of Miller vs. College of Policing actually highlights a trickier problem in the governance of the United Kingdom. Mr. Miller succeeded in his claim that the actions of the police were excessive — or in other less polite terms, oppressive — but failed to convince the court that the “College of Policing” guidance they were following was itself wrong. Quite aside from whether the guidance is right or wrong, this is plainly the correct outcome, but it isn’t a good one.

For the police to visit the place of work of a “suspect” accused, as the police freely admitted, of a “non-crime” is plainly oppressive. However, the police were in an impossible situation and would have been criticised no less forcefully for inaction too. While I am entirely unclear if the “Hate Crime Operational Guidance” is a Code of Practice under section 39A of the Police Act 1996, it stands to reason that there is some force in it, and the police should and will follow it. I suspect, since it doesn’t seem to have been approved by the Secretary of State as codes of practice are required to be, that it isn’t. But nothing here greatly turns on that distinction.

Plainly a citizen can challenge this action of the police in court, since mere reliance on College of Policing guidelines does not provide any sort of defence to the usual torts and the like. And it is also surely right, as Mr Justice Knowles admirably did, for the court to balance the aims of the police against the constitutional protections of the citizen. Knowles then concluded — as one would like to hope everyone would feel — that investigating someone at their place of work for conduct which the police know does not amount to any offence known to law is by its very nature excessive and could have a chilling effect on speech.

So far so good, the police lost. But if this is the result of the guidelines, why are they themselves not being struck down? We should understand why we really shouldn’t want the courts to be the principal way the guidance produced by the College is scrutinised. Note that the test (was the guidance produced for a legitimate purpose and was it disproportionate?) was not met. It is not as well known as it should be that the bar to succeed in a judicial review is exactingly high, and rightly so.

The problem is that the courts are simply the wrong forum to check and scrutinise the quasi-legislative actions of quangos. All the more so when the topic is one fraught with ethical and moral considerations. This should be the domain of the Parliament. But, equally, Parliament should not be hiving off the responsibility to make these quasi-legislative decisions to other public bodies in the first place either — in much the same vein as Parliament should not be establishing “Citizens’ Assemblies” to decide things. We elect MPs to make these decisions not to dodge them.

So, if it is desired to have guidance requiring the investigation of “non-crimes”, with all the concomitant police activity that comes with that, Parliament should be the one to decide it. MPs can then weigh the value of devoting resources to this activity versus another; and can weigh the constitutional effects of it against the status quo. And, unlike a quango (and unlike the judiciary) MPs will have to defend their decisions in this to their electors once a quinquennium or so.

MPs have decided they want a greater control over agricultural welfare than on how the police investigate crimes

Although the judiciary must have the power to stop public bodies acting unlawfully, this should not extend to making value judgements about the quality or need for guidance. Two High Court Judges in a Divisional Court, as wise as they are, are no substitute for the scrutiny provided by the representatives of the people. This is partially because being elected MPs have a constituency — a demos — to represent. But it is also because by their very nature MPs are supposed to be in tune with the ethical and moral beliefs of the people. Judges, on the other hand, should be in tune with the law.

Earlier this week a new Code of Practice for the Welfare of Pigs (S.I. 2020 No. 127 for the insatiably curious) was enacted — this might seem like a bizarre segue but it isn’t. Superficially, this looks the same as the guidance here: it is non-binding but there might be legal or regulatory consequences for not following it. But it also has an important difference. While it is no doubt informed by advice from expert bodies and stakeholders, it is for the Secretary of State to produce the code. Even more importantly, the code can not be enacted unless a Statutory Instrument is passed to provide for this. Now, this is merely a “negative instrument” so the level of scrutiny of it is almost de minimis, but it is much better than nothing (indeed, for agricultural welfare it may well be a good balance). If you are a farmer, though, and think the new code of practice is totally broken, complain to your MP — there is something they can do about it.

For porcine welfare we therefore have two avenues of scrutiny. One, the Secretary of State might have to defend the policy he has created at the despatch box, and secondly, at least nominally any MP can try and annul it (by a “prayer” in formal Parliamentary terms). No such ability exists for this College of Policing guidance, but it is obvious from this case that College guidance is far more likely to impact upon the ordinary citizen’s life than esoteric animal welfare standards will. We saw during Brexit how much effort some MPs will put into not deciding anything, but the root cause of this malaise runs deeper still.

MPs have essentially decided that they want a greater control over agricultural welfare advice than they do on how the police prioritise and investigate crimes. Far from being an academic issue, this has troubling implications for democracy too. Every time the process of making laws — and guidance like this, whilst not a law but a gloss on it, is in practice little different in effect — is made more remote it has less support from the public. This can only be to the detriment of British democracy.

Of course, every time MPs hand over the process of running the country to more and more of these quangos, they don’t take a pay cut, do they? Maybe they should: it might sharpen the mind.